(Circulated by authority of
the Minister for Immigration and Citizenship,

the Honourable Kevin
Andrews MP)

MIGRATION AMENDMENT (SPONSORSHIP
OBLIGATIONS) BILL 2007

OUTLINE

The Migration
Amendment (Sponsorship Obligations) Bill 2007 (‘the
bill’) amends the Migration Act 1958 (‘the
Act’) to introduce a regime of obligations to be met by
employers who are approved sponsors in relation to a person for a
visa. The new regime will apply to prescribed kinds of visas
and where the obligations apply these will replace the current
undertakings arrangements. Importantly the new regime also
incorporates enforcement provisions by way of civil penalties if an
approved sponsor breaches an obligation.

The bill also
includes provisions for inspectors to monitor an employer’s
compliance with their sponsorship obligations which is an important
element of the enforcement regime. In addition there are
enhanced information exchange powers between the Department and
other prescribed Commonwealth, State and Territory agencies.

More specifically
the bill:

·
creates a new subdivision of sponsorship obligations that will
automatically apply to an approved sponsor;

·
includes an enforcement and sanctions regime for compliance with
those obligations including provisions for:

o
the appointment of inspectors with powers to undertake
investigations in relation to a sponsor’s compliance with the
sponsorship obligations or other requirements. These are
standard powers which have been adopted (with some modifications)
from the Workplace Relations Act 1996 (the WRA);

o
provision of civil penalties for breach by an approved sponsor of
any of the obligations in the Act and provision for additional
obligations with penalties to be prescribed in the regulations;

o
remedies for those “out of pocket” as a result of an
approved sponsor’s non compliance with an obligation.
This will include power for an eligible court in civil remedy
proceedings to make orders in relation to money to be paid and the
inclusion of additional provisions allowing aggrieved persons
(including the Commonwealth, States and Territories) to bring
separate actions to recover monies payable pursuant to an
obligation.

·
includes general provisions relating to civil remedies which would
apply across the Migration Act not just to the new sponsorship
obligations civil remedy provisions;

·
as part of the regime of remedies, provisions have been included
that deal with matters such as interest up to and upon judgment,
small claims procedures and unclaimed monies. These
provisions will also apply to breaches of undertakings;

·
includes a requirement that approved sponsors comply with laws of
the Commonwealth, State or Territories and allows for
administrative barring of a sponsor if a decision maker reasonably
believes that a law has been breached. Compliance with
relevant Australian laws may bear upon an approved sponsor’s
fitness to be a sponsor;

·
includes provisions allowing for the administrative action of
cancelling approval as a sponsor or barring a sponsor where the
decision maker reasonably believes that an obligation has been
breached;

·
will ensure that personal information regarding sponsored visa
holders or former sponsored visa holders and approved sponsors or
former approved sponsors can be disclosed to the other party or to
prescribed agencies of the Commonwealth or of a State or
Territory;

·
changes the time that undertakings (in cases where these are still
applicable) come into effect, from the time the visa is granted to
the sponsored person to the time the sponsor becomes an approved
sponsor. This will make the time that undertakings come into
effect consistent with when the new obligations are imposed. i.e.
on a sponsor becoming an approved sponsor;

·
amends the Tax Administration Act 1953 (the TAA) to allow
the Tax Office to disclose certain information. The information
must be relevant to the exercise of the Minister’s powers
under, or the administration of Division 3A of Part 2 of the
Migration Act;

·
includes transitional provisions clarifying that the new
obligations will apply to existing approved sponsors of prescribed
kinds of visas on commencement. Where the new
obligations are imposed any undertakings that related to the
sponsorship for that visa will cease to be enforceable.

The bill is designed to preserve the integrity of the Australian
labour market and ensure the working conditions of overseas
sponsored employees.

financial impact
statement

The cost to implement the changes to the
administration of the temporary skilled migration visa category has
been estimated at $85.3 million over the next four years from
2007-08. This amount of funding has been included in the
2007-08 Budget and forward year estimates. $66.1 million has
been allocated to the Department of Immigration and Citizenship of
which $35.9 million will directly support the implementation of the
sponsorship obligations regime set up under this bill. The
balance of the budget funding for this particular measure has been
allocated to Office of Workplace Services, Department of Employment
and Workplace Relations, Department of Education, Science and
Training and the Australian Taxation Office. The revenue from the
inclusion of fines had been estimated at $7.9 million over four
years from 2007-08. However, this figure will need to be
revised in light of necessary changes made in the course of
drafting of the bill.

REGULATION IMPACT STATEMENT

The Office of Best Practice Regulation in the
Productivity Commission has been consulted and has advised that the
Business Cost Calculation Report is the appropriate level of
regulatory analysis for the proposal. The report is as
follows:

Business Cost Calculation Report

Sponsorship Obligations

Problem: The
inadequacy of the existing regulatory framework in enforcing and
encouraging compliance with relevant laws. Non-compliance may
impact on the integrity of the Australian labour market and can
seriously affect the standard of living for overseas workers.

Objectives: The primary objective is
increased compliance with relevant laws. The secondary objectives
are preserving the integrity of the Australian labour market and
ensuring the conditions of overseas workers.

Policy Options

Option
Name
Quickscan Result

Sponsorship
Obligations
Ã¼

Compliance Costs
Summary

Option
Name:
Sponsorship Obligations

Businesses
Affected: 15,000

Type

Cost per Business

Total Cost of Regulation

Startup:

$133.33

$2,000,000.00

OnGoing:

$14.08

$211,230.00

Option Cost:

$147.41

$2,211,230.00

MIGRATION AMENDMENT (SPONSORSHIP
OBLIGATIONS) BILL 2007

notes on individual
clauses

Clause
1 Short
title

1.
Clause 1 provides that the short title by which the Act may be
cited is the Migration Amendment (Sponsorship Obligations) Act
2007.

Clause
2
Commencement

2.
Subclause 2(1) provides that each provision of the Act specified in
column 1 of the table commences, or is taken to have commenced, in
accordance with column 2 of the table. Any other statement in
column 2 has effect according to its terms.

- Table Item
1 provides that sections 1 to 3 of the Act and anything in the
Act not elsewhere covered by this table will commence on the day on
which this Act receives the Royal Assent.

- Table Item
2 provides that Schedules 1 and 2 commence on a single
day to be fixed by Proclamation. However, it also provides
that if any of the provision(s) do not commence within the period
of 6 months beginning on the day on which the Act receives the
Royal Assent, they commence on the first day after the end of that
period.

3. Subclause 2(2)
explains that column 3 of the table contains additional information
that is not part of this Act. It specifies that information in this
column may be added to or edited in any published version of this
Act.

4. An explanatory
note is provided to assist the reader at the end of this
table. It specifies that the table relates only to the
provisions of this Act as originally passed by both House of
Parliament and assented to. It states clearly that the table
will not be expanded to deal with provisions inserted in this Act
after assent.

Clause
3
Schedule(s)

4.
This clause provides that each Act specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in
the Schedule concerned. In addition, any other item in a
Schedule to this Act has effect according to its terms.

This item inserts a definition of
“civil remedy provision” into the definitions section
of the Act. It will provide that “civil remedy
provision” has the meaning given by new section
486R.

Item
2
Subsection 5(1)

This item inserts a definition of
“penalty unit” into the definitions section of the Act.
It provides that “penalty unit” has the meaning given
by section 4AA of the Crimes Act 1914 .

Item 3
Subdivision A of Division 3A of Part 2 (heading)

This item repeals the existing heading
and replaces it with the new heading “Subdivision A -
Application of Division and definitions”.

Item
4
At the end of Subdivision A of Division 3A of Part 2

This item inserts new section 140AA which provides the meanings for
the defined terms “undertaking” and
“obligation”. These definitions will have application
throughout Division 3A of Part 2 of the Act subject to section
140XA (inserted by item 29).

This item provides that “obligation” means, subject to
section 140XA (inserted by item 29), an obligation imposed by
Subdivision BB or by regulations made under Subdivision BB.
This definition is subject to section 140XA as that provision
provides a special definition of sponsorship obligation for the
purposes of Subdivision C of Division 3A of Part 2 of the Act.

This item also provides that “undertaking” means an
undertaking required by Subdivision BA or by regulations made under
Subdivision BA.

Item
5
After section 140G

This item inserts a new Subdivision heading “Subdivision BA
- Sponsorship undertakings may be required for approval as a
sponsor”.

Item
6
Subsection 140H(3)

This item repeals and replaces subsection 140H(3) to make it clear
that like the sponsorship obligations that arise under new
Subdivision BB or regulations made under that subdivision,
undertakings made under Subdivision BA or regulations made under
that subdivision, do not have effect until the applicant becomes an
approved sponsor of the person for the visa.

This item also inserts a note which directs the reader to section
140D which sets out the circumstances where a sponsor is an
approved sponsor.

Item
7
After section 140I

This item inserts new “Subdivision BB - Sponsorship
obligations of certain approved sponsors”. The new
subdivision comprises 11 new sections.

140IA
Subdivision applies only in relation to prescribed visas

New section 140IA provides that Subdivision BB only applies to an
approved sponsorof a person for a visa if the visa is of a
prescribed kind (however described). The wording
referring to a prescribed kind of visa (however described) rather
than to a class of visa is to allow visas within certain classes
and subclasses to be prescribed allowing greater targeting of the
sponsorship obligations regime to specific visas obtained by
meeting specific criteria.

140IB
Meaning of primary person and secondary person in
relation to an approved sponsor

Item 140IB provides, for the purposes of Subdivision BB,
definitions of “primary person” and “secondary
person”.

Primary person in relation to an approved sponsor of a person for a
visa means the person whom the approved sponsor consented to
sponsor for that visa who is to work or works in the nominated
activity in respect of which the visa is granted. This is
essentially the sponsored person who is to undertake the nominated
activity and who is granted a visa by meeting the primary criteria
for that visa.

Secondary person in relation to an approved sponsor of a person for
a visa means a person whom the approved sponsor consented to
sponsor for that visa, who is granted the visa on the basis of his
or her relationship to the primary person. This provision
picks up the fact that certain persons may be granted a visa
through meeting the secondary criteria prescribed in the
regulations. That is, they are granted a visa on the basis of
their relationship to the person who meets the primary criteria
(the person who is granted their visa on the basis that they will
perform the nominated activity). Such a relationship may for
example be that of spouse, dependent child, interdependent partner
or dependent child of an interdependent partner.

140IC
Obligation to pay at least minimum salary level etc.

New paragraph140IC(1)(a) provides that an approved sponsor of
a person for a visa must pay a salary to the person that is at or
above the level that is worked out in a way specified from time to
time by the Minister in a legislative instrument for the purposes
of this subsection. This makes it clear that the level of
salary may be varied from time to time and that it is the salary
level in place at any particular time that that must be paid by the
approved sponsor not the salary level that was in place when the
sponsor became an approved sponsor.

While the subdivision BB sponsorship obligations apply once a
sponsor becomes an approved sponsor, new paragraph 140IC(1)(b) sets
out the time from when the approved sponsor must pay the sponsored
visa holder the minimum salary. If the visa holder is outside
Australia when the visa is granted the minimum salary must be paid
from either the time the visa holder starts working for the
approved sponsor or 28 days after the visa holder enters Australia,
whichever is the earlier. If the visa holder is in Australia
at the time the visa is granted the approved sponsor must pay the
minimum salary from the day on which the person starts working for
the approved sponsor or 28 days after the visa is granted to the
person, whichever is the earlier.

In the case of the grant of a new section 140IA prescribed kind of
visa while the person is in Australia, it will be the new approved
sponsor in respect of that visa that will be required to pay the
minimum salary level in accordance with subparagraph
140IC(1)(b)(ii) not the originally approved sponsor (unless they
are the same person)

New paragraph 140IC(1)(b) provides that the approved sponsor must
pay the sponsored visa holder in the manner specified in the
legislative instrument referred to in paragraph 140IC(1)(b). This
will allow the instrument to specify such things as the way in
which the person may be paid and the types of deductions (if any)
that may be allowed to be made from the person’s salary.

New subsection140IC(1) is a civil penalty provision with no fault
elements for which the maximum penalty for an individual is 60
penalty units and the maximum penalty for a body corporate is 300
penalty units.

Item 2 of the bill provides that “penalty unit” is
defined in section 4AA of the Crimes Act
1914 .

The justification for use of civil penalty provisions, as opposed
to criminal sanctions, is that the imposition of criminal sanctions
on sponsors could have harsh consequences on the sponsor such a
loss of their export licence (or any other licence for that
matter), which would not be in Australia’s best interest. The
use of civil provisions is also considered appropriate for the
enforcement scheme to be flexible and administratively manageable.
The use of civil penalties will increase compliance with migration
legislation (and other relevant laws), thereby preserving the
integrity of the Australian labour market and improving the
conditions of overseas workers. In addition, the justification for
no fault civil penalty offences is to facilitate an infringements
notices regime. A power has been included to provide for such a
regime in the Migration Regulations 1994 . (See item 46
which inserts new paragraph 504(1)(jb).

New subsection 140IC(2) provides that the legislative instrument
made for the purposes of subsection (1) may specify different ways
of working out the level of salary in respect of different
occupations or classes or subclasses of occupations, persons
working in particular geographical areas and any other circumstance
or matter the Minister considers appropriate. For example, this
will allow for the level to be worked out on the basis of an hourly
or weekly rate and also allow provision to be made for hours worked
above the standard 38 hour week.

Subsection 140IC(2) also provides that the instrument may include
mechanisms for the level to be varied on one or more specified days
or at the end of one or more specified periods.

New subsection 140IC(3) deals with the situation where the approved
sponsor has made arrangements, such as taking out insurance that
will cover or partly cover the obligation in subsection (1).
For instance the approved sponsor will take out workers
compensation insurance for the primary person and if there is a
work related accident, such that workers compensation is payable,
this will potentially meet the approved sponsor’s obligation
to pay the minimum salary level. If the compensation payment
does not meet the minimum salary level then the approved sponsor
would remain liable for payment of the difference.

Subsection 140IC(3) specifically provides that an approved sponsor
is taken to have satisfied the obligation in subsection (1) to the
extent that another person (other than the primary person or
secondary person), by arrangement with the approved sponsor, pays
some or all of the primary person’s salary. An
example is also included for greater clarity which deals with the
approved sponsor taking out insurance.

New subsection 140IC(4) provides that subsection (3) only applies
if the costs (if any) of the arrangement between the approved
sponsor and the other person are paid by the approved
sponsor. This is to ensure that any cost involved in the
arrangement (eg the payment of an insurance premium) must be met by
the sponsor and not for example, passed on to the primary
person.

140ID
Obligation to employ primary person in the same or a higher-skilled
activity

New section140ID provides that an approved sponsor of a person for
a visa must not employ the person in an activity that requires a
lower skills level then the skills required for the nominated
activity which was the basis of the grant of the visa to the
person. This makes it clear that an approved sponsor may
employ the sponsored person in a different activity to that
nominated (and on which basis the visa was granted), but it must be
an activity that requires at least the same or a higher level of
skill as the originally proposed activity.

New section 140ID is a civil penalty provision with no fault
elements for which the maximum penalty for an individual is 60
penalty units and the maximum penalty for a body corporate is 300
penalty units.

Item 2 of the bill provides that “penalty unit” is
defined in section 4AA of the Crimes Act 1914.

The justification for use of civil penalty provisions, as opposed
to criminal sanctions, is that the imposition of criminal sanctions
on sponsors could have harsh consequences on the sponsor such a
loss of their export licence (or any other licence for that
matter), which would not be in Australia’s best interest. The
use of civil provisions is also considered appropriate for the
enforcement scheme to be flexible and administratively manageable.
The use of civil penalties will increase compliance with migration
legislation (and other relevant laws), thereby preserving the
integrity of the Australian labour market improving the conditions
of overseas workers. In addition, the justification for no fault
civil penalty offences is to facilitate an infringements notices
regime. A power has been included to provide for such a regime in
the Migration Regulations 1994 . (See item 46 which inserts
new paragraph 504(1)(jb).

140IE
Obligation to pay travel costs of leaving Australia

New section 140IE deals with the obligation of an approved sponsor
to meet the return travel costs of the primary person (defined in
new section 140IB inserted by item 7) and any secondary person
(defined in new section 140IB inserted by item 7). This will
normally be after the primary person completes the employment
(nominated activity) for which he/she was granted a visa to come to
Australia but it may also be at an earlier time or in circumstances
where they are otherwise required to leave Australia.

The intention of this provision is to make the person or body that
is the last approved sponsor of the person responsible for meeting
the costs of the primary person and the secondary persons’
travel from Australia (including travel in Australia) back to the
place from where they initially travelled to come to
Australia.

This recognises that a sponsored person may have changed sponsor
while in Australia such that responsibility for the return travel
costs shifts from the original approved sponsor to a new one.

The obligation in subsection 140IE(1) applies to the approved
sponsor of a primary person and the obligation in subsection
140IE(2) applies to the approved sponsor of a secondary
person. The obligation is such that when a sponsored person
leaves Australia (other than temporarily) the approved sponsor must
pay for his or her travel (including any travel within Australia)
for the purpose of returning to the place from where he or she
initially travelled to Australia.

Both subsections 140IE(1) and (2) are civil penalty provisions with
no fault elements for which the maximum penalty for an individual
is 60 penalty units and the maximum penalty for a body corporate is
300 penalty units.

Item 2 of the bill provides that “Penalty unit” is
defined in section 4AA of the Crimes Act 1914.

The justification for use of civil penalty provisions, as opposed
to criminal sanctions, is that the imposition of criminal sanctions
on sponsors could have harsh consequences on the sponsor such a
loss of their export licence (or any other licence for that
matter), which would not be in Australia’s best interest. The
use of civil provisions is also considered appropriate for the
enforcement scheme to be flexible and administratively manageable.
The use of civil penalties will increase compliance with migration
legislation (and other relevant laws), thereby preserving the
integrity of the Australian labour market and improving the
conditions of overseas workers. In addition, the justification for
no fault civil penalty offences is to facilitate an infringements
notices regime. A power has been included to provide for such a
regime in the Migration Regulations 1994 . (See item 46 which
inserts new paragraph 504(1)(jb).

New subsection 140IE(3) provides that if there has been more than
one approved sponsor of the primary or secondary person,
subsections (1) and (2) only apply to the last approved sponsor
before their final departure from Australia.

New subsection 140IE(4) provides that an approved sponsor is taken
to have satisfied the obligations in subsections (1) and (2), if
another person (whether or not the primary or secondary person) has
paid the costs referred to and the approved sponsor fully
reimburses the person within 14 days after being given a
receipt. It is intended that this provision will operate even
if the payment by the primary person has been an indirect
payment. The primary person will be taken to have paid the
costs the approved sponsor is obligated to pay under this section
where the approved sponsor has made a deduction from his or her
salary to facilitate direct payment of those costs by the approved
sponsor. In this case the sponsor will not be taken to have
satisfied this obligation until the primary person is reimbursed an
amount equivalent to those deductions.

This provision recognises that for practical reasons it may be
appropriate for the visa holder for instance, to initially pay the
travel costs and then seek reimbursement from the approved sponsor
rather than the sponsor paying for them up front.

140IF
Obligation to pay certain medical costs

New subsection 140IF(1) provides that an approved sponsor of a
primary person for a visa must pay the prescribed medical costs of
the primary person.

Similarly new subsection 140IF(2) provides that an approved sponsor
of a secondary person must pay the prescribed medical costs of the
secondary person.

Both subsections 140IF(1) and (2) are civil penalty provisions with
no fault elements for which the maximum penalty for an individual
is 60 penalty units and the maximum penalty for a body corporate is
300 penalty units.

Item 2 of the bill provides that “Penalty unit” is
defined in section 4AA of the Crimes Act 1914.

The justification for use of civil penalty provisions, as opposed
to criminal sanctions, is that the imposition of criminal sanctions
on sponsors could have harsh consequences on the sponsor such a
loss of their export licence (or any other licence for that
matter), which would not be in Australia’s best interest. The
use of civil provisions is also considered appropriate for the
enforcement scheme to be flexible and administratively manageable.
The use of civil penalties will increase compliance with migration
legislation (and other relevant laws), thereby preserving the
integrity of the Australian labour market and improving the
conditions of overseas workers. In addition, the justification for
no fault civil penalty offences is to facilitate an infringements
notices regime. A power has been included to provide for such a
regime in the Migration Regulations 1994 . (See item 46
which inserts new paragraph 504(1)(jb).

New subsection 140IF(3) indicates what the regulations prescribing
the medical costs (if any) may specify. That is, particular
medical costs or classes of medical costs, a limit in respect of
the medical costs of a person and a limit in respect of particular
medical costs or classes of medical costs.

It is intended that the regulations specify to what extent sponsors
are responsible for medical costs which may include, but are not
limited to public hospital costs, costs normally covered by
Medicare and the cost of pharmaceuticals.

Subsection 140IF(4) provides that for the purposes of subsections
(1) and (2), an approved sponsor is taken to have satisfied the
obligation in subsections (1) and (2) if another person (whether or
not the primary person or secondary person) has paid some or all of
the costs concerned and the approved sponsor fully reimburses that
person for the costs paid within 14 days after being given a
receipt. It is intended that this provision will operate even if
the payment by the primary person has been an indirect
payment. The primary person will be taken to have paid the
costs the approved sponsor is obligated to pay under this section
where the approved sponsor has made a deduction from his or her
salary to facilitate direct payment of those costs by the approved
sponsor. In this case the sponsor will not be taken to have
satisfied this obligation until the primary person is reimbursed an
amount equivalent to those deductions.

This provision recognises that for practical reasons it may be
appropriate for the visa holder for instance, to initially pay the
medical costs and then seek reimbursement from the approved sponsor
rather than the sponsor paying for them up front.

New subsection 140IF(5) deals with the situation where the approved
sponsor has made arrangements, such as taking out insurance that
will cover or partly cover the obligations in subsections (1) and
(2). For instance the approved sponsor may take out health
insurance for the sponsored persons. If the medical costs
required to be met by the approved sponsor are met by the health
insurance fund the approved sponsor will be taken to have satisfied
the obligation in subsection (1) or (2). If the health
insurance payment does not meet the full medical cost the approved
sponsor is obliged to pay, the approved sponsor would remain liable
for payment of the difference.

Subsection 140IF(5) specifically provides that an approved sponsor
is taken to have satisfied the obligation in subsection (1) or (2)
to the extent that another person (other than the primary person or
secondary person), by arrangement with the approved sponsor, pays
some or all of the costs concerned. An example is also
included for greater clarity which deals with the approved sponsor
taking out insurance.

New subsection 140IF(6) provides that subsection (5) only applies
if the costs (if any) of the arrangement between the approved
sponsor and the other person are paid by the approved
sponsor. This is to ensure that any cost involved in the
arrangement (eg the payment of an insurance premium) must be met by
the sponsor and not passed on to the sponsored persons.

140IG
Obligation to pay certain other fees and costs

New section 140IG deals with additional costs that must be paid for
by an approved sponsor.

New paragraph 140IG(1)(a) provides that an approved sponsor of a
primary person for a visa must pay any fees imposed under a law of
the Commonwealth, State or Territory that must be paid in order for
the primary person to work in the nominated activity in respect of
which the visa is granted. This might include such things as
licensing, registration or membership fees for example.

New paragraph 140IG(1)(b) provides that an approved sponsor must
meet the costs (if any) associated with recruiting the primary
person who is to be employed in the nominated activity in respect
of which the visa is granted. In the past some employers have
sought to impose recruitment costs on the visa holder. This
will no longer be allowed and will be a breach of this
obligation.

New paragraph 140IG(1)(c) provides that an approved sponsor must
pay the costs of a migration agent (if any) involved with the visa
application of the primary person. That is, the migration
agent’s costs of obtaining a visa for the primary person must
be met by the approved sponsor.

New subsection 140IG(1) is a civil penalty provision with no fault
elements for which the maximum penalty for an individual is 60
penalty units and the maximum penalty for a body corporate is 300
penalty units.

Item 2 of the bill provides that “Penalty unit” is
defined in section 4AA of the Crimes Act 1914.

The justification for use of civil penalty provisions, as opposed
to criminal sanctions, is that the imposition of criminal sanctions
on sponsors could have harsh consequences on the sponsor such a
loss of their export licence (or any other licence for that
matter), which would not be in Australia’s best interest. The
use of civil provisions is also considered appropriate for the
enforcement scheme to be flexible and administratively manageable.
The use of civil penalties will increase compliance with migration
legislation (and other relevant laws), thereby preserving the
integrity of the Australian labour market and improving the
conditions of overseas workers. In addition, the justification for
no fault civil penalty offences is to facilitate an infringements
notices regime. A power has been included to provide for such a
regime in the Migration Regulations 1994 . (See item 46 which
inserts new paragraph 504(1)(jb).

New subsection 140IG(2) creates an obligation for an approved
sponsor to pay the costs of a migration agent (if any) involved
with the visa application of any secondary person. That is,
the migration agent’s costs of obtaining a visa for any
secondary person or persons must be met by the approved
sponsor.

New subsection 140IG(2) is a civil penalty provision with no
fault elements for which the maximum penalty for an individual is
60 penalty units and the maximum penalty for a body corporate is
300 penalty units.

Item 2 of the bill provides that “Penalty unit” is
defined in section 4AA of the Crimes Act 1914.

The justification for use of civil penalty provisions, as opposed
to criminal sanctions, is that the imposition of criminal sanctions
on sponsors could have harsh consequences on the sponsor such a
loss of their export licence (or any other licence for that
matter), which would not be in Australia’s best interest. The
use of civil provisions is also considered appropriate for the
enforcement scheme to be flexible and administratively manageable.
The use of civil penalties will increase compliance with migration
legislation (and other relevant laws), thereby preserving the
integrity of the Australian labour market and improving the
conditions of overseas workers. In addition, the justification for
no fault civil penalty offences is to facilitate an infringements
notices regime. A power has been included to provide for such a
regime in the Migration Regulations 1994 . (See item 46
which inserts new paragraph 504(1)(jb).

New 140IG(3) provides that for the purposes of subsections (1) and
(2), an approved sponsor is taken to have satisfied the obligation
in subsections (1) and (2) if another person (whether or not the
primary person or secondary person) has paid some or all of
the fees or costs concerned and the approved sponsor fully
reimburses that person for the fees or costs paid within 14 days
after being given a receipt. It is intended that this provision
will operate even if the payment by the primary person has been an
indirect payment. The primary person will be taken to have
paid the costs the approved sponsor is obligated to pay under this
section where the approved sponsor has made a deduction from his or
her salary to facilitate direct payment of those costs by the
approved sponsor. In this case the sponsor will not be taken
to have satisfied this obligation until the primary person is
reimbursed an amount equivalent to those deductions.

This provision recognises that for practical reasons it may be
appropriate for the visa holder for instance to initially pay
certain costs and then seek reimbursement from the approved sponsor
rather than the sponsor paying for them up front.

140IH
Obligation to keep records

New section 140IH requires an approved sponsor to keep certain
records. This will assist inspectors appointed pursuant to
new section 140ZH (see item 44) with their function of monitoring
compliance by approved sponsors with the obligations imposed by or
under Subdivision BB. It will also facilitate the Secretary
obtaining information in compliance with the obligation in new
section 140IK (inserted by item 7)

Pursuant to paragraph 140IH(a) an approved sponsor of a person for
a visa must keep prescribed records of all payments made by the
approved sponsor as required by Subdivision BB or by the
regulations made under subdivision BB. Pursuant to paragraph
140IH(b) the approved sponsor of a person for a visa must also keep
such other records as are prescribed by the regulations.

New section 140IH is a civil penalty provision with no fault
elements for which the maximum penalty for an individual is 60
penalty units and the maximum penalty for a body corporate is 300
penalty units.

Item 2 of the bill provides that “Penalty unit” is
defined in section 4AA of the Crimes Act 1914.

The justification for use of civil penalty provisions, as opposed
to criminal sanctions, is that the imposition of criminal sanctions
on sponsors could have harsh consequences on the sponsor such a
loss of their export licence (or any other licence for that
matter), which would not be in Australia’s best interest. The
use of civil provisions is also considered appropriate for the
enforcement scheme to be flexible and administratively manageable.
The use of civil penalties will increase compliance with migration
legislation (and other relevant laws), thereby preserving the
integrity of the Australian labour market and improving the
conditions of overseas workers. In addition, the justification for
no fault civil penalty offences is to facilitate an infringements
notices regime. A power has been included to provide for such a
regime in the Migration Regulations 1994 . (See item 46
which inserts new paragraph 504(1)(jb).

A note has also been included at the end of section 140IH which
refers the reader to section 140ZJ where an approved sponsor may be
required to produce records to an inspector.

Section 140IJ deals with the situation where persons sponsored by
the approved sponsor have not departed Australia in accordance with
the terms of their visa and the Commonwealth has incurred expense
in their location, detention and removal or the processing of any
protection visa application made by them. This amendment
ensures that the Australian community does not end up paying for
the removal of a person who has come to Australia to undertake
employment but rather the person responsible for bringing the
person into Australia bears the cost. This is an incentive to
employers wishing to sponsor persons to undertake employment
activities in Australia on a temporary basis, to ensure that the
persons they wish to sponsor genuinely intend skilled employment in
Australia.

Subsection 140IJ(1) provides that an approved sponsor of a person
for a visa must pay to the Commonwealth an amount equal to the
costs incurred by the Commonwealth in relation to the locating and
detaining of the person, removing or deporting them or processing
an application for a protection visa (see section 36 of the Act)
made by them.

The obligation to meet these costs imposed on the approved sponsor
relates to both the primary person and any secondary person who
holds a visa as a result of their relationship to the primary
person.

Paragraphs 140IJ(2)(a) and (b) set out the way in which the costs
referred to in subsection (1) are to be determined. In the
case of the costs of locating a person or processing an application
for a protection visa, paragraph140IJ(2)(a) provides that costs
means the costs worked out in accordance with a method prescribed
by reference to a determination made in writing by the
Minister. This allows for the regulations to prescribe the
method for calculating the costs including by reference to a
determination in writing by the Minister.

Paragraph 140IJ(2)(b) provides that in the case of the costs of
detaining, removing or deporting a person, costs has the same
meaning as in Division 10 of Part 2 of the Act. Section 207
which is an interpretation provision in Division 10 of Part 2
provides that costs, in relation to detention, means the costs of
transporting the person and a custodian between places of detention
and from the place of detention to the place from where the person
is to be removed or deported or to be released. It also means
the daily maintenance amount for each day of detention which is
further defined to mean the amount determined under section
208.

Subsection 140IJ(2) also provides that the regulations may
prescribe a limit for each of the costs mentioned in paragraphs
(2)(a) and (b) for the purposes of this section.

New subsection140IJ(3) provides that to the extent that an approved
sponsor of a person for a visa is liable to pay the costs that one
or more other persons are liable to pay under Division 10 of Part
2, the approved sponsor and the other person or persons are jointly
and severally liable to pay those costs.

Subsection 140IJ(4) provides that 140IJ has effect despite anything
to the contrary in Division 10 of Part 2. This makes it clear
that the provisions of Division 10 of Part 2, which make persons
other than an approved sponsor liable for the costs of locating,
detaining, removing or deporting a person, are not to override
section 140IJ (which also creates a liability for the approved
sponsor to pay these costs).

These provisions are designed to ensure consistency between the
approved sponsor’s obligation to meet the
Commonwealth’s costs in relation to locating detaining,
removing or deporting a sponsored person with any liability for
these costs created in existing Division 10 of Part 2.

140IK
Obligation to provide information

New section 140IK creates an obligation for a sponsor to provide
information requested by the Secretary. This obligation is
also an important obligation to assist in monitoring compliance by
approved sponsors with their sponsorship obligations.

Subsection 140IK(1) provides that the Secretary may require an
approved sponsor of a person for a visa to provide such information
as is required in a written notice.

Subsection 140IK(2) provides a limit on the type of information
that the Secretary can require an approved sponsor to
provide. That is, the Secretary may only require information
that is to be used by the Secretary or the Minister for the
purposes of the administration of this Act or of the
regulations.

Subsection 140IK(3) provides that a notice given under subsection
(1) must state that the information must be provided within the
specified period which cannot be a period of less than 7 days.

Subsection 140IK(4) provides that a notice given under subsection
(1) must be given to the approved sponsor by one of the methods
specified in section 494B. When one of those methods is used
the provisions in section 494C will apply to determine when the
notice is taken to have been received by the approved sponsor.

Subsection 140IK(4) also provides that for the purposes of this
subsection a reference in section 494B and 494C to the Minister is
instead taken to be a reference to the Secretary.

Subsection 140IK(5) provides that a person to whom a notice is
given under subsection (1) must comply with the notice, which
includes providing the information within the time specified.

New subsection 140IK(5) is a civil penalty provision with no fault
elements for which the maximum penalty for an individual is 60
penalty units and the maximum penalty for a body corporate is 300
penalty units.

Item 2 of the bill provides that “Penalty unit” is
defined in section 4AA of the Crimes Act 1914.

The justification for use of civil
penalty provisions, as opposed to criminal sanctions, is that the
imposition of criminal sanctions on sponsors could have harsh
consequences on the sponsor such a loss of their export licence (or
any other licence for that matter), which would not be in
Australia’s best interest. The use of civil provisions is
also considered appropriate for the enforcement scheme to be
flexible and administratively manageable. The use of civil
penalties will increase compliance with migration legislation (and
other relevant laws), thereby preserving the integrity of the
Australian labour market and improving the conditions of overseas
workers. In addition, the justification for no fault civil penalty
offences is to facilitate an infringements notices regime. A power
has been included to provide for such a regime in the Migration
Regulations 1994 . (See item 46 which inserts new
paragraph 504(1)(jb).

New subsection 140IK(6) provides that despite subsection (5) a
person is not required to comply with a notice that is withdrawn in
writing by the Secretary.

140IL
Other obligations may be prescribed

New section 140IL allows for additional obligation to those in
Subdivision BB to be prescribed in the regulations and for approved
sponsors breaching those obligations to be liable to a civil
penalty.

Specifically, subsection 140IL(1) provides that the regulation may
require an approved sponsor of a person for a visa to comply with
one or more additional obligations prescribed in the
regulations.

New subsection 140IL(2) provides that the civil penalty that the
regulations may prescribe for breach of an obligation in the
regulations can not exceed 50 penalty units for an individual and
250 penalty units for a body corporate.

Item 2 of the bill provides that “Penalty unit” is
defined in section 4AA of the Crimes Act 1914.

There is a need to allow for further obligations with civil penalty
provisions to be prescribed in the regulations to provide the
flexibility to respond to possible exploitation by sponsors of visa
holders and also to cover minor more administrative obligations
such as an approved sponsor keeping in the Commonwealth advised of
any change of address etc.

Subdivision BC - Cancelling approval as a sponsor or
barring a sponsor

Item 8
Paragraph 140J(2)(a)

This item makes a technical amendment to paragraph 140J(2)(a) to
omit the words (cancelling or barring approval as a sponsor) and
replacing them with “(cancelling approval as a sponsor or
barring a sponsor)”. This is to better reflect the
actions that can be taken under section 140L which do not include
barring approval as a sponsor.

The note in this item also provides that the heading to section
140J is replaced by the heading “Cancelling approval as a
sponsor or barring a sponsor if undertakings breached”.

Item 9
Subsection 140J(3)

This item makes a technical amendment to subsection 140J(3) to omit
the words (cancelling or barring approval as a sponsor) and
replacing them with “(cancelling approval as a sponsor or
barring a sponsor)”. This is to better reflect the
actions that can be taken under section 140L which do not include
barring approval as a sponsor.

Item
10
Before subsection 140K(1)

Item 10 inserts new subsections (1A) and (1B) before existing
subsection 140K(1). Existing section 140K provides for
the regulations to prescribe the circumstances in which the
Minister may or must take one of the actions in section 140L
(action to cancel approval as a sponsor or to bar a sponsor).

New subsection 140K(1A) provides that if the Minister reasonably
believes that an approved sponsor or former approved sponsor of a
person for a visa has breached an obligation or a person who is no
longer an approved sponsor but remains bound by an obligation, has
breached the obligation, the Minister may take one or more of the
actions set out in section 140L (to cancel approval as a sponsor or
to bar a sponsor from doing certain things).

New subsection 140K(1B) provides that if the Minister reasonably
believes that an approved sponsor of a person for a visa has
breached a Commonwealth, State or Territory law and because of that
breach it is appropriate to take one or more of the actions in
section 140L(c) - (g) (which involve barring a sponsor), the
Minister may take the action or actions in relation to the approved
sponsor or former approved sponsor.

This provision is designed to ensure that where the Minister
reasonably believes that an approved sponsor or former approved
sponsor has breached a law that is relevant to their status as a
sponsor the Minister can take action barring a sponsor from doing
certain things such as sponsoring more people under existing
approvals. The basis for this power is the reasonable belief
that the person has breached a law so that if the approved sponsor
or former approved sponsor is actually acquitted of the offence or
is successful in appealing a conviction the power to bar
sponsorship will nevertheless have been validly exercised provided
the Minister reasonably held the belief that the law had been
breached.

It is intended that one of the circumstances to be prescribed under
section 140O, as a circumstance when the Minister can waive a bar
placed a sponsor under section 140K, will include the circumstance
that the approved sponsor, or former approved sponsor did not
actually breach a law.

The note at the end of subsection 140K(1B) notes that paragraphs
140L(c) - (g) referred to in subsection (1B) deal with
barring a sponsor.

An additional note at item 10 (also provides that the heading to
section 140K is replaced by the heading “Cancelling approval
as a sponsor or barring a sponsor in other
circumstances”.

Item
11
Paragraph 140K(1)(a)

Item 11 makes a technical amendment to paragraph 140K(1)(a) to omit
the words “(cancelling or barring approval as a
sponsor)” and replacing them with “(cancelling approval
as a sponsor or barring a sponsor)”. This is to better
reflect the actions that can be taken under section 140L which do
not include barring approval as a sponsor.

Item
12
Subsection 140K(2)

Item 12 makes a technical amendment to subsection 140K(2) to omit
the words “(cancelling or barring approval as a
sponsor)” and replacing them with “(cancelling approval
as a sponsor or barring a sponsor)”. This is to better
reflect the actions that can be taken under section 140L which do
not include barring approval as a sponsor.

This item also includes a note which provides that the heading to
section 140N is replaced by the heading “process for
cancelling approval as a sponsor or barring a sponsor”.

Item
13
After section 140P

Item 13 inserts a new subdivision after section 140P. It is
“Subdivision BD - Consequences of change of
status”. The only section in new subdivision BD is
section 140Q which deals with the consequences if either the visa
holder or the approved sponsor cease to hold their respective
statuses.

Item
14
Subsection 140Q(1)

Item 14 inserts “or obligation” after the word
“undertaking” in subsection 140Q(1) making it clear
that section 140Q applies to both the current undertakings and to
the new obligations being created by or under new Subdivision
BB.

Subsection 140Q(1) provides that the regulations may prescribe the
circumstances in which, and for how long, an undertaking or
obligation arising out of the sponsorship remains enforceable
against the sponsor concerned if the visa holder ceases to hold the
visa for which he or she was sponsored or the sponsor ceases to be
an approved sponsor of the visa holder.

This means that there may be circumstances and a period after the
relevant approved sponsor has ceased to be an approved sponsor in
relation to a visa holder (or former visa holder) where they can
still breach an obligation and be liable to a civil penalty.
For instance, the regulations may prescribe that the obligation in
140IC for example to pay a certain salary level must continue for a
certain period after the sponsor ceases to be an approved sponsor
of the visa holder.

Item
15
At the end of section 140Q

Item 15 inserts a new subsection 140Q(3). This important
provision makes it absolutely clear that a change described in
paragraphs 140Q(1)(a) or (b) (i.e. a change in status of the
relevant visa holder or approved sponsor) does not affect any
liability incurred in respect of an obligation (including a breach
of an obligation) imposed by Subdivision BB or regulations made
under that subdivision.

New subsection 140(3) means that if an approved sponsor has
breached an obligation they remain liable to civil penalty
proceedings and recovery of any monies they are liable to pay under
an obligation even if they cease to be an approved sponsor in
relation to the affected visa holder or the affected visa holder
ceases to hold the visa for which the approved sponsor sponsored
them.

Item
16
After section 140Q

Item 16 inserts a new “Subdivision BE - Liability,
Enforcement and recovery” which deals with what liability is
created when an obligation or undertaking is breached, what action
can be taken to enforce compliance with an obligation or
undertaking and capacity to recover money a person is required to
pay pursuant to an undertaking or obligation.

New section 140QA also inserted by item 16 provides some specific
definitions for the purposes of new Subdivision BE.

“Eligible court” is defined to mean the Federal Court,
the Federal Magistrates Court, a District, County or Local Court, a
magistrate’s court or any other State or Territory court that
is prescribed by the regulations.

A “Subdivision BB civil penalty provision” is defined
to mean:

(a) a provision in Subdivision BB that specifies a civil penalty at
the foot of the section (where it is a section without subsections)
or at the foot of the subsection where the provision is s
subsection; or

(b) a provision in the regulations made under section140IL (Other
obligations that may be prescribed) that prescribes an obligation,
the breach of which attracts a civil penalty prescribed in
accordance with subsection 140IL(4).

Item
17
Subsections 140R(1) to (3)

Item 17 provides that after the word “undertaking”
wherever occurring, the words “or obligation” are to be
inserted. This makes it clear that section 140R which deals
with certain debts relates to both undertakings referred to in
Subdivision BA or obligations imposed by or under Subdivision
BB.

Item
18
Subsection 140R(3)

This item amends subsection 140R(3) so that it refers to an
eligible court rather than a court of competent jurisdiction.
This ensures that recovery action for debts payable to a person
under an undertaking or an obligation can be taken in an eligible
court as specifically defined for Subdivision BE. This would apply
for example, to medical costs incurred by the sponsored persons
where an approved sponsor is bound by the obligation in section
140IF.

Item
19
Subsections 140S(2) and (3)

Item 19 provides that after the word “undertaking”
wherever occurring, the words “or obligation” are to be
inserted. This makes it clear that section 140S which deals
with liability to pay amounts pursuant to an undertaking or
obligation (that is not a debt dealt with in section 140R) deals
with both undertakings referred to in Subdivision BA or obligations
imposed by or under Subdivision BB (See new section 140QA inserted
by item 16).

Item
20
Subsection 140S(3)

This item amends subsection 140S(3) so that it refers to an
eligible court rather than a court of competent jurisdiction.
This ensures that recovery action for amounts payable pursuant to
an undertaking or obligation (that is not a debt dealt with in
section 140R) can be taken in an eligible court as specifically
defined for Subdivision BE.

Item
21
At the end of section 140S

Item 21 inserts a new subsection (4) into existing section
140S. New subsection (4) makes it clear that without
limiting any other provision of the Act, amounts payable to the
Commonwealth or to a State or Territory under an undertaking or an
obligation may be recovered by the Commonwealth, State or Territory
(as the case may be) in an eligible court.

The difference between amounts referred to in section 140S and
debts referred to in section 140R is that the visa holder does not
have any liability to repay costs dealt with in section 140S.
In fact it may be the visa holder to whom the amount is payable
e.g. the minimum salary level. (See section 140IC inserted by item
7).

Item
22
After section 140S

140SA
Who may apply for civil penalties under Subdivision BB

New section 140SA sets out who may apply for civil penalties to be
invoked under Subdivision BB. It provides that the Minister
may apply to an eligible court for an order under new section 140SB
in relation to a breach of a Subdivision BB civil penalty provision
by a person. New section 140SB provides that an
eligible court may make an order imposing a pecuniary penalty on a
person if they have breached a Subdivision BB civil penalty
provision.

This section refers to a “person” rather than an
approved sponsor consistent with the fact that by the time the
civil penalty proceeding commences the approved a sponsor may have
ceased to hold that status.

140SB
Imposition and recovery of civil penalties under Subdivision
BB

Item 22 also insert new section 140SB which provides that an
eligible court can impose a pecuniary penalty for breach of a
Subdivision BB civil penalty provision (as defined in section 140QA
inserted by item 16), the maximum penalty that can be imposed and
how continuing breaches and breaches in respect of many visa
holders are to be treated.

More specifically subsection 140SB(1) provides that an eligible
court may make an order imposing a pecuniary penalty on a person if
the person breaches a Subdivision BB civil penalty provision when
he or she is bound by that provision. A person is bound by an
obligation while they remain an approved sponsor for the visaed
person or for such additional period after they have ceased to be
an approved sponsor as may be prescribed in the regulations
pursuant to section 140Q. In referring to a person subsection
140SB(1) recognises that by the time a pecuniary penalty is to be
imposed for a previous breach an approved sponsor may no longer
hold that status.

A note is also included after subsection 140SB(1) alerting the
reader to the fact that certain persons involved in a breach of a
Subdivision BB civil penalty provision may also be treated as
having breached the provision. The reader is specifically referred
to subsection 140SB(9).

New subsection 140SB(2) provides that the maximum penalty that may
be imposed under subsection (1) for a breach of a Subdivision
BB civil penalty provision is the civil penalty specified in
respect of that provision. In the case of obligations imposed
by Subdivision BB this is 60 penalty units for a person and 300
penalty units for a body corporate. In the case of an
obligation imposed by regulations made under Subdivision BB it is a
maximum of 50 penalty units for an individual and 250 penalty units
for a body corporate.

New subsection 140SB(3) deals with the
situation of a series of breaches arising out of a course of
conduct. It provides that subject to subsections (4) and
(5) if 2 or more breaches of a Subdivision BB civil penalty
provision are committed by the same person and the breaches arose
out of a course of conduct by the person, the breaches are to be
taken to constitute a single breach of the provision.

Subsection 140SB(4) provides that for the
purposes of subsection (3), if the breaches of the Subdivision
BB civil penalty provision relate to an obligation in respect of
another person, 2 or more breaches of that provision arise out of a
course of conduct only if each of the breaches relates to an
obligation in respect of the same person. For additional
clarity an example has been included.

Example: An
approved sponsor of 2 persons for a visa fails to pay each of those
persons a salary in accordance with section 140IC. Because the
breaches are in respect of 2 persons, they are not to be taken to
constitute a single breach of the provision; the approved sponsor
has breached that provision in respect of each of the persons.

Subsection 140SB(5) also qualifies subsection
140SB(3) in that it provides that subsection (3) does not
apply to a breach of a Subdivision BB civil penalty provision that
is committed by a person after an eligible court has imposed a
penalty on the person for an earlier breach of the provision.
That is, a further breach or breaches can occur from the same
course of conduct in relation to the same person if the course of
conduct continues after the time that a penalty has been imposed
for an earlier breach.

Subsection 140SB(6) is a restitution provision
which allows an eligible court as part of the civil penalty
proceedings to make and order that amounts required to be paid
pursuant to the obligations should be paid. More specifically it
provides that in a civil remedy proceeding against a person under
section 140SB, if it appears to the eligible court that an amount
that was required to be paid under a Subdivision BB civil penalty
provision has not been paid to the Commonwealth, a State or
Territory or another person, the court may order the
first-mentioned person to pay the amount of the underpayment
to the Commonwealth, State, Territory or other person (as the case
may be).

A note is also inserted after subsection
140SB(6) drawing the readers attention to the fact that section
140R and 140S also allow for separate recover actions to be taken
in an eligible court for amounts owed in accordance with an
undertaking or obligation.

Subsection 140SB(7) provides that an order
must not be made under subsection (6) in relation to so much
of an underpayment as relates to any period more than 6 years
before the commencement of the proceeding.

Subsection 140SB(8) provides that
a proceeding under section 140SB in relation to a breach of a
Subdivision BB civil penalty provision must be commenced not later
than 6 years after the commission of the breach.

A note is also inserted after subsection
140SB(8) which draws the readers attention to the fact that
Part 8D contains general provisions relating to civil
remedies.

New subsection 140SB(9) provides that certain
persons involved in a breach of a Subdivision BB civil penalty
provisions are to be treated as having breached it for the purposes
of subsection (1). They are taken to have been bound by the civil
penalty provision at the time they committed the breach. The
persons covered are those who aid, abet, counsel, procure, induce
(whether by threats or promises or otherwise) or conspire with
others to effect the breach. This means that persons who are not
approved sponsors, but are involved in the way described in an act
or omission that amounts to a breach of the civil penalty provision
may also be liable for breach of that provision as well as the
approved sponsor.

140SC
Interest up to judgment

New section 140SC deals with the issue of
interest on monies that should have been paid pursuant to an
undertaking or obligation and action has been brought in an
eligible court pursuant to 140SB, 140R or 140S.

Subsection 140SC(1) specifically provides that
in exercising its powers under subsection 140SB(6) or in a
proceeding under section 140R or 140S, an eligible court must,
upon application, unless good cause is shown to the contrary,
either:

(a) order that there be
included in the sum for which an order is made or judgment given,
interest at such rate as the eligible court thinks fit on the whole
or any part of the money for the whole or any part of the period
between the date when the cause of action arose and the date on
which the order is made or judgment entered; or

(b) without proceeding to
calculate interest in accordance with paragraph (a), order
that there be included in the sum for which an order is made or
judgment given, a lump sum instead of any such interest.

Subsection 140SC(2) provides that
subsection (1) does not authorise:

(a)
the giving of interest upon
interest or of a sum instead of such interest; or

(b) apply in relation to
any debt upon which interest is payable as of right whether by
virtue of an agreement or otherwise; or

(c) authorise the giving
of interest, or a sum instead of interest, otherwise than by
consent, upon any sum for which judgment is given by consent.

140SD
Interest on judgment

New section 140SD deals with the issue of
interest on any judgment or order of an eligible court in
proceedings taken pursuant to 140SB, section 140R or section
140S. Section 140SD provides that a debt under a judgment or
order of an eligible court made under subsection 140SB(6) or
section 140R or 140S carries interest from the date on which
the judgment is entered or order made at such rate as would apply
under section 52 of the Federal Court of Australia Act 1976 if
the debt were a judgment debt to which that section applies.

140SE
Certain plaintiffs may choose small claims procedure

in magistrates courts

New section 140SE also inserted by item 22
provides a capacity for section 140R and section 140S actions to be
brought using a small claims procedure. This will be
available to persons commencing actions which means it will also be
available to bodies corporate and politic.

New subsection 140SE(1) provides that if a
person starts an action under section 140R or 140S in a
magistrate’s court and they indicate, in a manner prescribed
by the regulations or by rules of court relating to that court,
that they want a small claims procedure to apply,
subsections (2) to (4) apply in relation to the action.

Subsection 140SE(2) provides that the small
claims procedure is governed by certain conditions as follows:

(a) the court may not
award an amount exceeding $5,000 or such higher amount as is
prescribed;

(b) the court may act in
an informal manner, is not bound by any rules of evidence, and may
act without regard to legal forms and technicalities;

(c) at any stage of the
action, the court may amend the papers initiating the action if
sufficient notice is given to any party adversely affected by the
amendment;

(d) a person is not entitled to
be represented by counsel or a solicitor unless the court
permits;

(e) if the court permits
a party to be represented by counsel or a solicitor, the court may,
if it thinks fit, do so subject to conditions designed to ensure
that no other party is unfairly disadvantaged.

Subsection 140SE(3) provides that in a case
heard in a court of a Territory, the regulations may prohibit or
restrict legal representation of the parties despite paragraphs
(2)(d) and (e).

Subsection 140SE(4) provides that in a case
heard in a court of a State, if in a particular proceeding in that
court (whatever the nature of the proceeding) the law of the State
prohibits or restricts legal representation of the parties, the
regulations may prohibit or restrict legal representation of the
parties to the same extent as that law despite
paragraphs (2)(d) and (e).

140SF
Unclaimed money

New section 140SF deals with the issue of
unclaimed money and makes it clear that if a person is required to
pay an amount in accordance with an undertaking or obligation and
the whereabouts of the intended recipient is unknown, the person
may pay the money to the Commonwealth on trust for the intended
recipient. If this occurs the person paying the money is
taken to have discharged the obligation to pay to the extent of the
amount paid.

More specifically new subsection 140SF(1)
provides that if a person (the intended recipient) has not been
paid an amount that was required to be paid to him or her in
accordance with an undertaking or obligation; and the person who is
required to pay the amount is unable to do so because the person
does not know the intended recipient’s location, the person
may pay the amount to the Commonwealth.

Subsection 140SF(2) provides that the
Commonwealth holds the amount in trust for the intended
recipient.

Subsection 140SF(3) provides that payment of
the amount to the Commonwealth is a sufficient discharge to the
person, as against the intended recipient, for the amount
paid. If the full amount is not paid the unpaid portion
remains outstanding and enforcement or recovery action may be taken
in respect of that outstanding amount.

Item 23
Subsection
140T(1)

This item
inserts the words “or is obliged” after
“undertaken” into subsection 140T(1) of the Act.
Section 140T complements current section 140I, which deals with
amounts payable to the Commonwealth arising from the sponsorship
undertakings which may be required under regulations made pursuant
to current section 140H in Division 3A .

Subsection
140T(1) provides that, where a debt, or other amount, that a person
has undertaken to pay to the Commonwealth becomes payable, the
Minister may issue a notice in writing stating the amount of the
debt or other amount.

Subsection
140T(2) provides that in any proceedings a notice under this
section is prima facie evidence of the amount of the debt or other
amount.

This
amendment will ensure that this subsection will also apply to debts
payable to the Commonwealth that arise as a result of one or more
of the obligations contained in new Subdivision BB. The effect of
this amendment is such that where a debt, or other amount, that a
person is obliged to pay (because of the operation of one or more
of the obligations in Subdivision BB), becomes payable, the
Minister may issue a notice in writing stating the amount of the
debt or other amount which will be prima facie evidence of that
debt or other amount in proceedings taken pursuant to new 140SB,
section 140R or section 140S.

Item
24
After section 140U

This item inserts new “Subdivision BF - Other
matters”. The new subdivision BF comprises sections 140V and
140W which will deal with disclosure of personal information and
ensuring that other regulation making powers are not limited by the
regulation making powers in Division 3A.

Item
25
After subsection 140V(1)

This item inserts a new subsections 140V(1A) after subsection (1)
of the Act. Existing subsection 140V(1) authorises the
Minister to disclose personal information to an approved sponsor or
former approved sponsor in certain circumstances. These
circumstances are where:

·
the personal information is about a visa holder or former visa
holder whom the approved sponsor or former approved sponsor agreed
to sponsor; and

·
the personal information to be disclosed is of a prescribed
kind.

New subsection (1A) provides that the Minister may disclose to a
visa holder or former visa holder, personal information of a
prescribed kind about an approved sponsor or former approved
sponsor of the visa holder or former visa holder.

Information such as the fact that proceedings are being taken
against an approved sponsor for breach of an obligation for
example, may assist a sponsored person (a visa holder) in pursuing
any remedy that may be available to them.

This item also inserts new subsection (1B) after new subsection
140V(1A) of the Act.

New subsection (1B) provides that the Minister may disclose to a
prescribed agency of the Commonwealth or of a State or Territory,
personal information of a prescribed kind about:

·
a holder of a visa (including a former holder of a visa) of a kind
prescribed for the purposes of new section 140IA (inserted by item
7); or

·
an approved sponsor (including a former approved
sponsor).

Subsection 140V(3)
provides power for the regulations to prescribe circumstances in
which the recipients of personal information under section 140V may
use or disclose that personal information.

The purpose of new subsection (1A) is to authorise disclosure by
the Minister of personal information about a sponsor or former
approved sponsor to a visa holder. Disclosure could occur in
circumstances where a sponsor has breached an obligation such as
failure to pay certain amounts (eg. minimum salary level, travel or
medical costs) as required by some of the obligations in
Subdivision BB, and as a result of that breach the visa holder (or
former visa holder) is owed money. The information could assist the
visa holder to bring an action to recover the unpaid amounts.
Advising a visa holder that an approved sponsor has been barred
from further sponsoring could also allow the visa holder time to
look for a new approved sponsor should they wish to extend their
stay in Australia (i.e. they will have knowledge that their current
employer will not be able to sponsor them for a further visa)

The objective of new subsection (1B) is to permit the disclosure of
information (of a kind prescribed in the regulations) by the
Minister to other Commonwealth, State or Territory agencies (as
prescribed in the regulations) for the purpose of monitoring the
approved sponsor’s compliance with their obligations and the
new requirement to comply with all Commonwealth, State and
Territory laws (set out in new subsection 140K(2)) that are
relevant to the sponsor’s fitness to continue to sponsor visa
holders.

Item
26
Subsection 140V(3)

This item
omits subsection 140V(3) of the Act and substitutes a new
subsection which includes reference to the new subsections 140V(1A)
and (1B) and refers to “the recipient “of personal
information as different types of persons will be able to have
information disclosed to them under amended section
140V.

Subsection 140V(3)
provides power for the regulations to prescribe circumstances in
which the recipient of personal information disclosed pursuant to
subsections (1),(1A) and (1B) may use or disclose that personal
information. Subsection 140V(1) authorises the Minister to
disclose personal information of a prescribed kind to an approved
sponsor or former approved sponsor. New subsection 140V(1A)
authorises the Minister to disclose personal information of a
prescribed kind to a visa holder or former visa holder about the
approved sponsor or former approved sponsor of that visa holder.
New subsection 140V(1B) authorises the Minister to disclose
personal information of a prescribed kind to a prescribed
Commonwealth, State or territory agency about an approved sponsor
(or former approved sponsor) or about a person who holds a visa
covered by Division 3A of Part 2 or a former such visa holder.

Regulations will need to prescribe the circumstances under
which personal information received under new subsections (1),(1A)
and (1B) can be used and disclosed.

Item
27
Subsection 140V(4)

This item
repeals subsection 140V(4) and replaces it with a new
subsection. New subsection 140V(4) provides that if the
Minister discloses information about a visa holder (or former visa
holder) or an approved sponsor (or former approved sponsor)
pursuant to subsections 140V(1) or (1A) the Minister must notify
(in writing) the person about whom the information is
disclosed. That notification must include the fact that there
has been a disclosure and the details of the information actually
disclosed.

Item
28
Section 140X

This item
repeals section 140X of the Act and substitutes wording that refers
to “this Division” and also to new section 140ZBA
(inserted by item 35) . The purpose of this amendment is to ensure
that all of the subdivisions in Division 3A, and any regulations
made under that Division apply to a partnership as if it were a
person. This is subject, however, to the changes set out in
sections 140Y to 140ZBA.

This is to
ensure that where the approved sponsor is a partnership it is clear
that the obligations created by or under subdivisions BA and BB
apply to the partnership as if it were a person.

Item
29
After section 140X

140XA
Sponsorship obligation means all obligations of
sponsorship

This item
inserts a new section 140XA after section 140X of the
Act.

New
section 140XA provides a definition of ‘sponsorship
obligation’ for the purposes of Subdivision C -
Application of the sponsorship system to partnerships and
unincorporated associations. ‘Sponsorship obligation’
is defined to mean an obligation in relation to sponsorship or as a
result of sponsorship and includes an obligation that arises under
an undertaking required by Subdivision BA (or regulations made
under that subdivision) or an obligation imposed by Subdivision BB
(or regulations made under that subdivision).

This item
also inserts a new section 140XB after new section 140XA which
provides other definitions for the purposes of new Subdivision
C.

Item 4 of
this bill provides a definition of “obligation” for the
purposes of Division 3A, which is made subject to section
140XA.

140XB
Other definitions

For the
purposes of Subdivision C, in Part 2 of Division 3A, new section
140XB defines committee of management of an
unincorporated association to mean a body (however described) that
governs, manages or conducts the affairs of an
association.

It also
defines sponsorship right to mean a right in relation
to sponsorship or as a result of sponsorship.

Item 30
Subsection
140Y(1)

This item
repeals subsection 140Y(1) of the Act and substitutes a new
subsection 140Y(1).

Subsection
140Y sets out ways in which sponsorship obligations and rights
apply to a partnership.

New
subsection 140Y(1) establishes the general rule that a
sponsorship obligation that would otherwise be imposed on a
partnership (if it was a legal entity) is instead imposed on each
partner in a partnership at particular times. This general rule is
subject to section 140ZA as amended, which deals with retiring
partners.

New
paragraphs 140Y(1)(a) and (b) together provide that the partners
covered are those in the partnership either at the time the
partnership becomes an approved sponsor or in relation to the
Subdivision BB obligations at the time the Subdivision begins to
apply to the partnership as an approved sponsor.

Paragraph
(1)(b) will have limited application to those partnerships that
were approved sponsors for a Subdivision BB prescribed kind of visa
prior to commencement of Subdivision BB. In this case the
partners subject to the obligations in Subdivision BB will be those
persons who are partners at the time Subdivision BB
commences. This will then also be subject to section 140ZA
concerning retiring partners.

New
subsection 140Y(1) is made subject to section 140ZA which provides
that the

regulations may deal with the consequences of a partner
leaving a partnership after it becomes an approved sponsor or after
Subdivision BB applies to the partnership and may cover
circumstances such as:

· the circumstances in which, and
for how long, a sponsorship
right is exercisable by the retiring partner;
and

· which debts remain payable by
the retiring partner.

However,
no regulations have been made under section 140ZA.

Item
31
Subsection 140Y(2)

This item
repeals subsection 140Y(2) of the Act and substitutes a new
subsection 140Y(2).

Subsection
140Y sets out ways in which sponsorship obligations and rights may
be exercised by a partnership.

New
subsection 140Y(2) establishes the general rule that a
sponsorship right that would otherwise be exercisable by a
partnership (if it was a legal entity) is instead a right
exercisable by each partner in a partnership at particular times.
This general rule is subject to section 140ZA as amended, which
deals with retiring partners.

New
paragraphs 140Y(2)(a) and (b) together provide that the partners
covered are those in the partnership either at the time the
partnership becomes an approved sponsor or in relation to the
Subdivision BB rights, at the time the Subdivision begins to apply
to the partnership as an approved sponsor.

Paragraph
(1)(b) will have limited application to those partnerships that
were approved sponsors for a Subdivision BB prescribed kind of visa
prior to commencement of Subdivision BB. In that case the
partners with the Subdivision BB rights will be those persons who
are partners at the time Subdivision BB commences. This will
then also be subject to section 140ZA concerning retiring
partners

New
subsection 140Y(2) is made subject to section 140ZA which provides
that the

regulations may deal with the consequences of a partner
leaving a partnership after it becomes an approved sponsor or after
Subdivision BB applies to the partnership and may cover
circumstances such as:

· the circumstances in which, and
for how long, a sponsorship
right is exercisable by the retiring partner;
and

· which debts remain payable by
the retiring partner.

However,
no regulations have been made under section 140ZA.

Item
32
Paragraphs 140Y(3)(a) and (b)

This item
repeals paragraphs 140Y(3)(a) and (b) of the Act and substitutes
new paragraphs 140Y(3)(a) and (b).

Subsection
140Y(3) sets out who, in a partnership, is jointly and severally
liable to pay an amount that would otherwise be payable by a
partnership in relation to sponsorship or as a result of
sponsorship.

New
paragraphs 140Y(3)(a) and (b) together provide that the partners
covered are those in the partnership either at the time the
partnership becomes an approved sponsor or in relation to liability
arising from Subdivision BB obligations, at the time the
Subdivision begins to apply to the partnership as an approved
sponsor.

Subsection
140Y(3) is specifically made subject to section 140Z (new partners)
and section 140ZA (retiring partners). Section 140Z provides a
mechanism for new partners that join a partnership after it has
become an approved sponsor or after the time when Subdivision BB
applies to the partnership, to elect to accept obligations that
arise after the time of the election. If a partner chooses to
make such an election the rights that may be exercised in respect
of and the liabilities associated with that obligation also attach
to the new partner. Section 140ZA provides that the
regulations may deal with the consequences of a partner leaving a
partnership after it becomes an approved sponsor or after
Subdivision BB applies to the partnership and may cover
circumstances such as:

· the circumstances in which, and
for how long, a sponsorship
right is exercisable by the retiring partner;
and

· which debts remain payable by
the retiring partner.

However, no regulations have been made under section
140ZA.

Item
33
Subsection 140Z(1)

This item
amends subsection 140Z(1) of the Act to omit the words “is
approved as a sponsor” and to substitute the words
“becomes an approved sponsor of a person for a visa or after
Subdivision BB begins to apply to the partnership as an approved
sponsor”.

Section 140Z deals with the way
in which sponsorship obligations or rights apply to a person who
becomes a partner after the partnership becomes an approved sponsor
or after Subdivision BB applies to it as an approved
sponsor.

The general rule, that
sponsorship obligations only apply to a new partner if he or she
elects to accept these obligations, is set out in subsection
140Z(1). Subsection 140Z(1) also spells out that the
sponsorship obligations a new partner may elect to accept are those
that:

· would, but for subsection
140Y(1) or any previous application of section 140Z, be imposed on
the partnership; and

· arise after the new partner
makes the election.

If a partner chooses to make
such an election the rights that may be exercised in respect of,
and the liabilities associated with that obligation, also attach to
the new partner.

The effect
of this amendment is to ensure consistency in language with amended
section 140Y i.e. by referring to partners who join the partnership
after it becomes an approved sponsor or in the case of Subdivision
BB obligations, after that Subdivision applies to the partnership
as an approved sponsor.

Item
34
Subsection 140ZA(1)

This item
amends subsection 140ZA(1) of the Act to omit the words “is
approved as a sponsor” and to substitute the words
“becomes an approved sponsor of a person for a visa or after
Subdivision BB begins to apply to the partnership as an approved
sponsor of a person for a visa”.

Section 140ZA enables the
regulations to deal with the consequences of a partner leaving a
partnership after it becomes an approved sponsor or after
Subdivision BB applies to it as an approved sponsor.

· the circumstances in which, and
for how long, a sponsorship obligation remains enforceable against
the retiring partner;

· the circumstances in which, and
for how long, a sponsorship right is exercisable by the retiring
partner;

· which debts remain payable by
the retiring partner.

However, no regulations have
been made under section 140ZA.

The effect
of this amendment is to ensure consistency in language with amended
section 140Y i.e. by referring to partners who leave the
partnership after it becomes an approved sponsor or in the case of
Subdivision BB obligations, after that Subdivision applies to the
partnership.

Item
35
After section 140ZB

This item
inserts a new section 140ZBA - Liability of partners for
offences and civil penalties.

New
subsection 140ZBA sets out who is liable for offences and civil
penalties in the context of a partnership.

New
subsection 140ZBA(1) provides that an offence against a provision
in Division 3A, that would otherwise have been committed by a
partnership is taken to have been committed by each partner
who:

· did the relevant act or made
the relevant omission; or

· aided or abetted, counselled or
procured the relevant act or omission.

Currently,
the only applicable offence in Division 3A is failure to produce a
document at the request of an inspector (See new section 140ZK
inserted by item 44).

New
subsection 140ZBA(2) provides that despite anything to the contrary
in Division 3A, a pecuniary penalty must not be imposed on a
partner who is bound by a Subdivision BB civil penalty provision in
respect of a breach of that provision, unless the
partner:

· did the relevant act or made
the relevant omission; or

· aided or abetted, counselled or
procured the relevant act or omission.

New
subsection 140ZBA(3) provides that for the purposes of subsections
(1) and (2), to establish that a partnership engaged in a
particular conduct, it is sufficient to show that the conduct was
engaged in by a partner:

· in the ordinary course of the
business of the partnership; or

· within the scope of the actual
or apparent authority of the partner.

New
subsection 140ZBA(4) provides that for the purposes only of
subsection (1), to establish that a partnership had a particular
state of mind when it engaged in a particular conduct, it is
sufficient to show that the partner had the relevant state of
mind. Subsection (4) does not refer to subsection 140ZBA(2)
which deals with civil penalty proceedings as there are no mental
elements required to establish breach of a Subdivision BB civil
penalty.

Item
36
Section 140ZC

This item
repeals section 140ZC and substitutes wording that refers to
“this Division” and also to new section 140ZGA
(inserted by item 42). Section 140ZC mirrors section 140X (which
relates to partnerships) except it deals with unincorporated
associations. Section 140ZC as amended provides that new
Division 3A and regulations made under it, apply to an
unincorporated association as if it were a person.

The
purpose of this amendment is to ensure that new Division 3A, and
any regulations made under that Division apply to an unincorporated
association as if it were a person. This is subject however, to the
changes set out in sections 140ZD to 140ZGA.

Item
37
Subsection 140ZD(1)

This item
repeals subsection 140ZD(1) of the Act and substitutes a new
subsection 140ZD(1).

Subsection
140ZD(1) sets out ways in which sponsorship obligations and rights
apply to an unincorporated association.

New
subsection 140ZD(1) establishes the general rule that a
sponsorship obligation that would otherwise be imposed on a
unincorporated association (if it was a legal entity) is instead
imposed on each person who is a member of the association’s
committee of management at particular times. This general rule is
subject to section 140ZF as

amended,
which deals with former members of the association’s
committee of management.

New
paragraphs 140ZD(1)(a) and (b) together provide that the members of
the association’s committee of management covered are those
on the committee either at the time the association becomes an
approved sponsor or in the case of Subdivision BB obligations, at
the time the Subdivision begins to apply to the association as an
approved sponsor.

Paragraph
(1)(b) will have limited application to those associations that
were approved sponsors for a Subdivision BB prescribed kind of visa
prior to the commencement of Subdivision BB. In that case the
members of the association’s committee of management subject
to the obligations in Subdivision BB will be those persons who are
members at the time Subdivision BB commences. This will then
also be subject to section 140ZF concerning former
members.

New
subsection 140ZD(1) is made subject to section 140ZF which provides
that the

regulations may deal with the consequences of a person who
is a member of the association’s committee leaving the
association after it becomes an approved sponsor or in relation to
Subdivision BB obligations, after Subdivision BB applies to the
association as an approved sponsor and may cover circumstances such
as:

· the circumstances in which, and
for how long, a sponsorship
right is exercisable by the former member;
and

· which debts remain payable by
the former member.

However,
no regulations have been made under section 140ZF.

Item
38
Subsection 140ZD(2)

This item
repeals subsection 140ZD(2) of the Act and substitutes a new
subsection 140ZD(2).

New
subsection 14ZD(2) establishes the general rule that a
sponsorship right that would otherwise be exercisable by an
unincorporated association (if it was a legal entity ) is instead a
right exercisable by each person who is a member of the
association’s committee of management at particular times.
This general rule is subject to section 140ZF as amended, which
deals with former members.

New
paragraphs 140ZD(2)(a) and (b) together provide that the members of
the association’s committee of management covered are those
on the committee either at the time the association becomes an
approved sponsor or in the case of Subdivision BB rights, the time
the Subdivision begins to apply to the association as an approved
sponsor.

Paragraph
(2)(b) will have limited application to those associations who were
approved sponsors for a Subdivision BB prescribed kind of visa
prior to commencement of Subdivision BB. In that case the
members of the association’s committee of management who may
exercise the Subdivision BB rights will be those persons who were
members of the association’s committee of management at the
time Subdivision BB commences. This will then also be subject
to section 140ZF concerning former members.

New
subsection 140ZD(2) is made subject to section 140ZF which provides
that the

regulations may deal with the consequences of a member
leaving an association after it becomes an approved sponsor or in
relation to Subdivision BB obligations, after Subdivision BB
applies to the association as an approved sponsor, and may cover
circumstances such as:

· the circumstances in which, and
for how long, a sponsorship
right is exercisable by the former member;
and

· which debts remain payable by
the former member.

However,
no regulations have been made under section 140ZF to
date.

Item
39
Paragraphs 140ZD(3)(a) and (b)

This item
repeals paragraphs 140ZD(3)(a) and (b) of the Act and substitutes
new paragraphs 140ZD(3)(a) and (b).

Subsection
140ZD(3) sets out who, in an unincorporated association, is liable
to pay an amount that would otherwise be payable by an
unincorporated association in relation to sponsorship or as a
result of sponsorship.

New
paragraphs 140ZD(3)(a) and (b) together provide that the members of
an unincorporated association’s committee of management
covered are those on the committee either at the time the
association becomes an approved sponsor or in relation to liability
arising from Subdivision BB obligations, at the time Subdivision BB
begins to apply to the association as an approved
sponsor.

Subsection
140ZD(3) is specifically made subject to section 140ZE (new
members) and section 140ZF (former members). Section 140ZE provides
a mechanism for new members of an association’s committee of
management that join an unincorporated association after it has
become an approved sponsor or after the time when Subdivision BB
applies to the association, to elect to accept obligations that
arise after the time of the election. If a member chooses to
make such an election the rights that may be exercised in respect
of, and the liabilities associated with that obligation, also
attach to the new member. Section 140ZF provides that the
regulations may deal with the consequences of a member leaving a
committee of management of an unincorporated association after it
becomes an approved sponsor or after Subdivision BB applies to the
association and may cover circumstances such as:

· the circumstances in which, and
for how long, a sponsorship
right is exercisable by the former member;
and

· which debts remain payable by
the former member.

However,
no regulations have been made under section 140ZF.

Item
40
Subsection 140ZE(1)

This item
amends subsection 140ZE(1) of the Act to omit “is approved as
a sponsor” and substitute the words “becomes an
approved sponsor of a person for a visa or after Subdivision BB
begins to apply to the association as an approved sponsor of a
person for a visa”.

Section
140ZE deals with what happens when a new member joins the
association’s committee of management after it has become an
approved sponsor or after the time when Subdivision BB applies to
the association .

The general rule, that
sponsorship obligations only apply to a new member if he or she
elects to accept these obligations, is set out in subsection
140ZE(1). New subsection 140ZE(1) also spells out that the
sponsorship obligations a new member may elect to accept are those
that:

· would, but for subsection
140ZD(1) or any previous application of section 140ZE, be imposed
on the association; and

· arise after the new member
makes the election.

If a member chooses to make
such an election the rights that may be exercised in respect of,
and the liabilities associated with that obligation, also attach to
the new member.

The effect
of this amendment is to ensure consistency in language with amended
section 140ZD i.e. by referring to members who join the
committee of management of the association after it becomes an
approved sponsor or Subdivision BB applies to the
association.

Item
41
Subsection 140ZF(1)

This item
amends subsection 140ZF(1) of the Act to omit the words “is
approved as a sponsor” and to substitute the words
“becomes an approved sponsor of a person for a visa or after
Subdivision BB begins to apply to the association as an approved
sponsor of a person for a visa”.

Section 140ZF enables the
regulations to deal with the consequences of a member of an
association’s committee of management leaving the association
after it becomes an approved sponsor or after Subdivision BB
applies to it as an approved sponsor.

· the circumstances in which, and
for how long, a sponsorship obligation remains enforceable against
the former member;

· the circumstances in which, and
for how long, a sponsorship right is exercisable by the former
member;

· which debts remain payable by
the former member.

However, no regulations have
been made under section 140ZF to date.

The effect
of this amendment is to ensure consistency in language with amended
section 140ZD for sponsorship obligations to apply to a member who
has left the committee of management after the association becomes
an approved sponsor or after Subdivision BB applies to the
association.

Item
42
After section 140ZG

This item
inserts a new section 140ZGA - Liability of members of
committees of management for offences and civil
penalties.

New
subsection 140ZGA sets out who is liable for offences and civil
penalties in the context of an unincorporated
association.

New
subsection 140ZGA(1) provides that an offence against a provision
in Division 3A, that would otherwise have been committed by an
unincorporated association is taken to have been committed by each
member of the committee of management who:

· did the relevant act or made
the relevant omission; or

· aided or abetted, counseled or
procured the relevant act or omissions.

Currently,
the only relevant offence in Division 3A is failure to produce a
document at the request of an inspector (See new section 140ZK
inserted by item 44).

New
subsection 140ZGA(2) provides that despite anything to the contrary
in Division 3A, a pecuniary penalty must not be imposed on a member
who is bound by a Subdivision BB civil penalty provision in respect
of a breach of that provision, unless the member:

· did the relevant act or made
the relevant omission; or

· aided or abetted, counseled or
procured the relevant act or omissions.

New
subsection 140ZGA(4) provides that for the purposes of subsection
(1), to establish that an association had a particular state of
mind when it engaged in a particular conduct, it is sufficient to
show that the member had the relevant state of mind.
Subsection (4) does not refer to subsection 140ZGA(2) which deals
with civil penalty proceedings as there are no mental elements
required to establish breach of a Subdivision BB civil penalty
provision in Division 3A.

Item
43
Section 140ZH

This item
repeals section 140ZH. The definitions currently in that
section have been amended and moved up to the front of Subdivision
C in new sections 140XA and 140XB inserted by item 29.

Item
44 At
the end of Division 3A of Part 2

This item
inserts a new “Subdivision D - Inspectors” at the
end of Division 3A of Part 2. This new Subdivision D comprises 5
sections.

This new
subdivision sets out the powers of inspectors who will be
monitoring compliance of approved sponsors with their sponsorship
obligations such as power to search certain premises as well as the
power to disclose information. This subdivision also prescribes two
criminal offences for the purposes of Division 3A. The first is for
failure to produce a document at the request of an inspector (new
section 140JK) and the second is failure, on the part of an
inspector, to return his/her identity card with 14 days of ceasing
to be an inspector (new subsection 140ZI(3)).

140ZH
Inspectors

This item
inserts new section 140ZH which deals with appointment of
inspectors.

New
subsection 140ZH(1) provides that the Minister may, by written
instrument, appoint such inspectors as the Minister considers
necessary from time to time.

New
subsection 140ZH(2) provides that the Minister may appoint as an
inspector either:

(a) a person who has been appointed
(or is employed) by the Commonwealth; or

(b) a person, other than a person
mentioned in paragraph 140ZH(2)(a).

New
subsection 140ZH(3) provides that a person appointed under
paragraph 140ZH(2)(a) is appointed for the period specified in
regulations made under this subsection. New subsection
140ZH(4) provides that a person appointed under paragraph
140ZH(2)(b) is appointed for the period specified in the
person’s instrument of appointment, which must not be longer
than the period specified in the regulations made under section
140ZH(4).

New
subsection 140ZH(5) which is subject to subsection (6) provides
that an inspector has the powers and functions conferred on an
inspector by this Act or by the regulations.

New
subsection 140ZH(6), to which subsection (5) is made subject,
provides that a person appointed under paragraph (2)(b) has only
such of the powers and functions mentioned in subsection (5) as are
specified in his or her instrument of appointment. This means that
inspectors appointed pursuant to 140ZH(2)(b) may be provided with
limited powers or functions if necessary.

New
subsection 140ZH(7) provides that the Minister may give directions
(in writing) specifying the manner in which, and any conditions and
qualifications subject to which, powers or functions conferred on
inspectors are to be exercised or performed. This provision gives
the Minister power to provide guidance and direction to inspectors
as to how their powers or functions should be exercised and any
conditions or qualifications on those powers or
functions.

New
subsection 140ZH(8) provides that an inspector must comply with
those directions. The sanction for non-compliance would be for the
Minister to revoke the inspector’s appointment as an
inspector.

140ZI
Identity Cards

This item
inserts new section 140ZI which sets out rules in relation to the
issue and use of inspectors’ identity cards.

New
subsection 140ZI(1) provides that the Minister may issue to an
inspector an identity card in a prescribed form.

New
subsection 140ZI(2) compels an inspector to carry the identity card
at all times when exercising powers of performing functions as an
inspector.

New
subsection 140ZI(3) provides that a person commits a criminal
offence if the person ceases to be an inspector and the person
fails to return his or her identity card to the Secretary within 14
days after ceasing to be an inspector. The maximum penalty which
can be imposed for this offence is 1 penalty unit.

New
Subsection 140ZI(4) states that strict liability applies to the
offence in subsection (3).

A note has
been inserted under subsection (4) which provides that for a
definition of strict liability , see section 6.1 of the
Criminal Code.

The
Criminal Code requires that if an offence is intended to be one of
strict liability, it must be expressly stated. Strict
liability is criminal responsibility where there is an absence of
any requirement of fault. The defense of reasonable mistake of fact
is however available in strict liability offences.

It is important that identity cards be returned as
soon as practicable after an inspector ceases their appointment in
order to prevent the improper use of such cards. This is an
administrative obligation provision, with a small penalty attached
where strict

liability is commonly applied under Commonwealth
law.

140ZJ
Powers of Inspectors

Purpose for which powers of inspectors can
be exercised

Inspectors are given certain powers under the Act
(see subsection 140ZJ(2)) and additional powers or functions may be
prescribed in the regulations (see subsection 140ZH(5)). New
subsection 140ZJ(1) provides the purposes for which inspectors
powers can be exercised. The powers of an inspector may only be
exercised for the purposes of determining whether the obligations
imposed by Subdivision BB or by regulations made under that
Subdivision are being, or have been, complied with; or for the
purposes of a provision of the regulations that confers powers or
functions on inspectors.

Powers of inspectors

New subsection 140ZJ(2) sets out the powers of
inspectors.

Subparagraph
140ZJ(2)(a) permits an inspector to enter, without force, a place
of business or other place where he or she has reasonable cause to
believe that there is information, documents or any other thing
relevant to the purposes set out in subsection (1).

Paragraph
140ZJ(2)(b) provides that in a place (referred to in paragraph
140ZJ(2)(a)) inspectors are authorised to:

·
require a person having the custody of, or access to, a document
relevant to that purpose to produce the document to the inspector
within a specified period;

·
inspect a document produced to him or her and make copies of, or
take extracts from, the document; and

·
require a person to tell the inspector who has custody of a
document.

Inspectors are
also able to require a person, by written notice, to produce a
document to the inspector at a specified place within a specified
period (of not less than 7 days).

Note 1 explains
that a contravention of a requirement under
subparagraph140ZJ(2)(b)(iii) (requiring a person having the custody
of, or access to, a document relevant to that purpose to produce
the document to the inspector within a specified period) or
paragraph 140ZJ(2)(c) (requiring a person, by written notice, to
produce a document to the inspector at a specified place within a
specified period) may constitute an offence under section
140ZK. The penalty for an offence under section 140ZK
is imprisonment for 6 months.

Note 2 explains
that subsection (7) deals with the methods by which the notice must
be given to the person.

When may the powers be
exercised

Subsection 140ZJ(3) sets out when inspectors
powers may be exercised and provides that inspectors may exercise
their powers at any time during working hours or at any other time
at which it is necessary to do so for the purposes set out in
subsection (1).

Subsection 140ZJ(4) provides that if a person who
is required under subparagraph (2)(b)(iii) to produce a document
contravenes that requirement, an inspector may, by written notice
given to the person, require the person to produce the document at
a specified place within a specified period (of not less than 7
days).

Note 1 explains
that a contravention of a requirement under subsection 140ZJ(4) may
constitute an offence under section 140ZK. The penalty for an
offence under section 140ZK is imprisonment for 6 months.

Note 2 explains
that subsection (7) deals with the methods by which the notice must
be given to the person.

Subsection
140ZJ(5) provides that if a document is produced to an inspector
under paragraph (2)(c) or subsection (4) the inspector may make
copies of, or take extracts from the document and retain the
document for such period as is necessary for the purpose of
exercising powers or performing functions as an inspector.

Subsection
140ZJ(6) provides during the period a document is in the possession
of an inspector, the inspector must permit the person otherwise
entitled to possession of the document, or a person authorised by
the person, to inspect, make copies of or take extracts from the
document at all reasonable times.

Giving notices
under paragraph (2)(c) and subsection (4)

This subsection
provides that a notice referred to in paragraph (2)(c) or
subsection (4) must be given to the person by one of the methods
specified in section 494B.

The methods in
section 494B include giving a notice by hand, handing to person at
their residential or business address, transmission by fax, e-mail
or other electronic means. If

a notice is given
by one of the methods in section 494B the recipient is taken to
have received the notice in accordance with the provisions of
section 494C

Subsection
140ZJ(7), provides at paragraph (a) and (b) that a reference in
sections 494B or 494C to the Minister is instead taken to be
a reference to the inspector and despite subsection 494B(2), (3)
and (6), an inspector must not act by way of an authorised
officer. As inspectors will be performing an operational role
it is not appropriate that other officers should be authorised for
the purposes of providing notices. It is appropriate that
inspectors perform this important function personally.

Information and
documents that incriminate a person

Under subsection
140ZJ(8) a person must still produce a document or provide
information to an inspector notwithstanding the fact that the
document or information could incriminate them.

However, under
subsection 140ZJ(9) if an individual gives information or produces
a document under section 140ZJ none of the following are admissible
in evidence against the individual in any criminal proceedings
other than proceedings for an offence against 140ZK:

·
the giving of the information or the production
of the document;

·
any information, document or thing obtained as a
direct or indirect consequence of giving the information or
producing the document.

Subsection
140ZJ(10) provides that an inspector who is proposing to enter, or
has entered, premises and has been required by the occupier of the
premises to produce evidence of authority, the inspector is not
entitled to enter or remain on the premises without producing his
her identity card to the occupier.

140ZK
Non-compliance with requirement of inspector

This section provides that a person commits an
offence if the person contravenes a requirement made by an
inspector under subparagraph 140ZJ(2)(b)(iii), paragraph
140ZJ(2)(c) or subsection 140ZJ(4), which all deal with
requirements to produce documents.

This offence attracts a maximum penalty of
imprisonment of 6 months.

Subparagraph 140ZJ(2)(b)(iii) requires a
person having the custody of, or access to, a document (relevant to
a purpose for which the powers of an inspector can be exercised) to
produce the document to an inspector within a specified period.

Paragraph 140ZJ(2)(c) provides than an
inspector may require a person, by written notice, to produce a
document to the inspector at a specified place within a specified
period (of not less than 7 days).

Subsection 140Z(4) provides that if a person who
is required under subparagraph (2)(b)(iii) to produce a document
contravenes that requirement, an inspector may, by written notice
given to the person, require the person to produce the document at
a specified place within a specified period (of not less than 7
days).

140ZL
Disclosure of Information by inspectors

New section 140ZL
sets out the circumstances in which an inspector can disclose
information to another person. Under this section, the disclosure
of information (acquired in the course of exercising powers or
performing functions as an inspector) by an inspector is authorised
where the inspector considers, on reasonable grounds that the
disclosure in the course of exercising his or her powers or
performing his or her functions is necessary or appropriate.

Pursuant to
subsection 140ZL(2) and inspector may also disclose information to
an officer of the Department administered by the Minister who
administers the Workplace Relations Act 1996 if the
inspector considers on reasonable grounds that the disclosure is
likely to assist the officer in the administration of that Act.

Subsection
140ZL(3) also provides that the regulations may authorise
inspectors to disclose information of the prescribed kind, for
prescribed purposes, to officers of the Commonwealth of the
prescribed kind or officers of a State or Territory of the
prescribed kind.

Item
45
After Part 8C

This item
inserts a new “Part 8D - General provisions relating to civil
remedies”, after Part 8C of the Act. This new Part
comprises 9 sections.

New Part
8D sets up a general framework for civil remedies that is to have
application across the Act and the regulations.

486R
Operation of this Part

Section 486R indicates
that the rules set out in Part 8D apply for the purposes of:

·
Any other provision of the Migration Act or of the regulations
declared to be a civil remedy provision whether or not for the
purposes of a particular segment of the Act or regulations; and

·
Any other provision of the Migration Act or of the regulations that
provides a remedy for a contravention of a civil remedy
provision.

Subsection 486R(2) also
provides that the provisions referred to above are called civil
remedy provisions.

486S
Involvement in contravention treated in same way as actual
contravention

New
section 486S establishes that a person involved in a contravention
of a civil remedy provision is to be treated as having contravened
that provision personally. The term involved in is defined
in subsection 486S(2) to mean when the person has aided, abetted,
counseled, procured, induced (whether by threats or promises or
otherwise) the contravention or has conspired with others to effect
the contravention .

486T
Civil evidence and procedure rules for civil remedy
orders

New
section 486T, which is self explanatory, provides that a court
hearing a matter under a civil remedy provision must apply the
rules of evidence and procedure for civil matters.

486U
Recovery of pecuniary penalties

New section 486U
provides that a pecuniary penalty payable under an order made under
a civil remedy provision is a debt due and payable to the
Commonwealth. The Commonwealth and may enforce the order as
if it were an order made in civil proceedings against the person to
recover the debt. The debt is taken to be a judgment
debt.

486V
Civil proceedings after criminal proceedings

Pursuant
to new section 486V, a court must not make an order under a civil
remedy provision in relation to certain conduct that requires a
person to pay a pecuniary penalty if that person has been convicted
of an offence arising from substantially the same
conduct.

New
section 486V ensures that a person who is convicted of a criminal
offence will not face a pecuniary penalty in relation to
substantially the same conduct.

486W
Criminal proceedings during civil proceedings

This new
section sets out the interrelationship between criminal and civil
proceedings that relate to conduct of a person which may be a
breach of a civil penalty provision and also a criminal offence.
Under subsection 486W(1), proceedings for an order under a civil
remedy provision which will require that person to pay a pecuniary
penalty will be stayed where:

· criminal proceedings are
started or have already been started against the person for an
offence; and

· the offence is constituted by
conduct that is substantially the same as the conduct in relation
to which an order under a civil remedy provision is proposed to be
made.

Under
subsection 486W(2), proceedings for an order under a civil remedy
provision would be able to be resumed if the person is not
convicted of an offence. If the person is convicted,
proceedings for an order under a civil remedy provision will be
dismissed.

486X
Criminal proceedings after civil proceedings

New
section 486X provides that criminal proceedings may be commenced
against a person for conduct that is substantially the same as that
which could be the basis for an order under a civil penalty
provision regardless of whether or not such an order has been
made.

486Y
Evidence given in proceedings for pecuniary penalty not admissible
in criminal proceedings

New
section 486Y provides that evidence of information given or
evidence of production of documents in proceedings for an order
under a civil remedy provision requiring a pecuniary penalty is
inadmissible in subsequent criminal proceedings which relate to
substantially the same conduct. This section does not however,
apply in respect of a criminal proceeding for false evidence given
by the individual in proceedings under the civil remedy
provision.

486Z
Civil double jeopardy

New
section 486Z applies the double jeopardy principle to civil remedy
provisions under the Migration Act. Under this section, a person
would not be liable to pay a pecuniary penalty under another law of
the Commonwealth relating to conduct that was substantially the
same as that for which they have already been ordered to pay a
pecuniary penalty under a civil remedy provision.

Civil
remedy provision is defined in new section 486R (inserted by item
45).

Item
46
After paragraph 504(1)(ja)

This item
inserts new paragraph 504(1)(jb) after paragraph
504(1)(ja).

New
paragraph 504(1)(jb) provides an additional purpose for which the
Governor-General is authorised to make regulations.

Subsection
504(1) provides that the Governor-General may make regulations, not
inconsistent with this Act, prescribing all matters which by this
Act are required or permitted to be prescribed or which are
necessary or convenient to be prescribed for the carrying out or
giving effect to this Act and, without limiting the generality of
the foregoing may make regulations.

New
Paragraph 504(1)(jb) provides the power to make regulations
enabling a persons who is alleged to have contravened a provision
in Subdivision BB of Part 3A of Part 2 (or regulations made
thereunder) to pay to the Commonwealth a prescribed penalty, as an
alternative to a proceeding under section 140SB not exceeding
one-fifth of the maximum penalty (that would otherwise
apply).

The
purpose of this amendment is to set up a power to make regulations
which provide a person who is alleged to have contravened a
provision in or under Subdivision BB with an alternative to a civil
penalty proceeding under section 140SB. The alternative is to pay
to the Commonwealth, an amount not exceeding one-fifth of the
maximum penalty that would have applied for contravention of the
provision.

It is
intended that an infringement notices regime be set up in the
regulations to complement the civil penalty regime.

Part 2—Transitional
matters

Item
47
Application of amendments to persons who are already approved
sponsors

Section 47
is a provision which has been included in the bill to avoid any
doubt that the new provisions in this bill, such as the new
obligations regime and associated civil penalties are to apply to
already approved sponsors (in relation to Subdivision BB prescribed
types of visas).

Section 47
provides, that to avoid doubt, the reference in section 140IA of
the Migration Act 1958 (as inserted by item 7 of Schedule 1 of the
bill) to an approved sponsor includes a reference to an approved
sponsor when section 140IA commences.

Item
48
Effect of amendments on undertakings made before
commencement

Item 48 is
a transitional provisions dealing with undertakings made prior to
the commencement of item 7 of this bill and where Subdivision BB
becomes applicable to the approved sponsor in relation to that
visa.

Item 48(1)
provides that where an approved sponsor has made undertakings as
required by or under section 140H or 140I in relation to a
prescribed kind of visa and after that time Subdivision BB applies
to the approved sponsor in relation to that visa, then the
undertakings cease to be enforceable against the approved
sponsor.

Item 48(2) sets out that
subsection (1) has effect despite section 140Q of the Migration Act
1958. Section 140Q allows regulations to prescribe the
circumstances in which, and for how long, an undertaking or
obligation arising out of a sponsorship can remain enforceable
against the sponsor where there has been a change in circumstances
i.e. where the sponsor has ceased to be an approved sponsor or the
visa holder has ceased to hold the visa for which he or she was
sponsored.

Item 48(3) provides
that, to avoid doubt, subsection (1) does not affect any penalty
incurred or other remedy available in respect of an act or omission
before Subdivision BB of Division 3A of Part 2 of the Migration Act
1958 applies to the approved sponsor. Also subsection (1)
does not affect any investigation, proceeding, or other action in
respect of such penalty or other remedy that may be instituted,
continued, enforced, imposed or taken after Subdivision BB applies
to the approved sponsor.

Item 48(3) makes it clear that where undertakings made by an
approved sponsor cease to be in enforceable on Subdivision BB
applying to an approved sponsor, anything done in relation to a
penalty, remedy, action, proceeding investigation etc is not
affected by the undertakings ceasing to be enforceable. For
instance if an approved sponsor had breached an undertaking at a
time when it was enforceable against them (they were bound by that
undertaking) a decision could still be taken post Subdivision BB
applying to that approved sponsor, to for instance, cancel their
approval as a sponsor or bar sponsorship.

Item
49
Effect of certain amendments on current proceedings

This item
provides for transitional arrangements in relation to certain
amendments by indicating that those amendments are not to affect
ongoing proceedings.

This item
provides at subsection (1) that amendments to the Migration Act
1958 made by items 18, 20 and 21 of Schedule 1 do not apply in
relation to, or otherwise affect, any proceedings started before
those amendments commence. Items 18, 20 and 21 deal
with amendments to sections 140R and 140S of the Migration Act 1958
which allow for recovery of moneys which an approved sponsor is
obliged to pay under an undertaking or obligation. The
amendments effectively change the court where an action can be
commenced from a court of competent jurisdiction to an eligible
court . Eligible court is defined in new section
140QA.

This item
also provides at subsection (2) that sections 140SC to 140SE of the
Migration Act 1958 as inserted by item 22 of Schedule 1 of the bill
apply only in relation to proceedings started on or after the
commencement of those sections. New sections 140SC to 140SE
deal with issues such as interest on monies due up to judgment,
interest on judgment and using a small claims procedure in a
magistrates court. These provisions did not apply to actions
commenced under section 140R or 140S prior to the amendments to be
made by this bill and this provision makes it clear that they do
not apply to those pre-existing proceedings after commencement of
item 22.

Item 50 makes it clear that the amendment made
by items 6, 30 to 34, and items 36 to 41 do not affect any
obligation that was imposed, or liability or right that arose,
before those amendments commence.

The amendments referred to in these items are
to change the time at which undertakings take effect in relation to
a person, a partnership or an unincorporated association
respectively. The new time of effect (generally speaking) is
when the sponsor becomes an approved sponsor. This provision
makes it clear that this change is not to affect any obligation
imposed, liability or right that arose as a result of the
provisions in effect prior to the commencement of these items.

Schedule 2 - Taxation
Administration Act 1953

Part 1 -
Amendment

Item
1
After section 3EC

This item amends the Taxation
Administration Act 1953 (“TAA”) to insert a
new section 3ED after section 3EC of the TAA.

New subsection 3ED(1) overrides any taxation
secrecy provision and allows the Commissioner of Taxation to
disclose tax information to the Department of Immigration and
Citizenship (DIAC), if the Commissioner is satisfied that the
information:

(a) relates to
a holder or former holder of a visa, or an approved sponsor or
former approved sponsor whose identity is disclosed to the
Commissioner under section 140V of the Migration Act 1958
and

(b) is relevant to
the exercise of the Minister’s powers under, or the
administration of, Division 3A of Part 2 of the Migration Act 1958
or regulations made under that Division.

New paragraph 3ED(1)(a) requires that the tax
information relates to either a holder (or former holder) of a
visa, or an approved sponsor (or former approved sponsor) of a
person for a visa whose identity is disclosed to the Commissioner
under section 140V of the Migration Act 1958. This means
that the Commissioner may only disclose information about a sponsor
or visa holder to DIAC if the visa holder or sponsor’s
identity has first been disclosed to the Commissioner pursuant to
new section 140V(1B) as inserted by item 25.

New paragraph 3ED(1)(b) provides that in
addition to the requirements set out in 3ED(1)(a), the tax
information may only be disclosed if it is relevant to the exercise
of the Minister’s powers under, or the administration of,
Division 3A of Part 2 (or the regulations made under it). A note is
included at the bottom of subsection 3ED(1) which explains that
Division 3A of Part 2 deals with sponsorship.

DIAC will use the tax information to monitor
whether approved sponsors are complying with their sponsorship
obligations and are good corporate citizens, in that they are
complying with laws of the Commonwealth, of a State or Territory
that are relevant to the sponsor’s fitness to be a sponsor of
visa holders.

New subsection 3ED(2) establishes a criminal
offence and provides that a person to whom information is disclosed
under subsections (1) or (3) must not disclose the information to
another person or make a record of the information. Contravention
of this provision attracts a maximum penalty of 2 years
imprisonment. This subsection operates to prohibit a person
(whether the officer who initially received the information or a
person who received it pursuant to subsection (3))) from disclosing
the information to another person. The person must also not make a
record of the information.

Subsection 3ED(3) provides that subsection (2)
does not apply to the extent that the information was disclosed, or
the record of the information was made, for or in connection with
the purposes set out in paragraphs (a) - (e).

Paragraph 3ED(3)(a) covers the exercise of the
Minister’s powers under, or the administration of Division 3A
(or the regulations made under that Division). This would cover
such powers as the power to bar a sponsorship, the power to waive a
bar on sponsorship, power to bring a civil remedy proceeding for
breach of an obligation (such as failure to pay minimum salary
level (MSL), or failure to pay travel costs).

Paragraph 3ED(3)(b) covers merits review and
judicial review of a decision concerning the exercise of the
Minister’s powers under Division 3A. For example, this new
paragraph would permit disclosure to the Migration Review Tribunal
(MRT) of information that led the Minister to make a decision to
bar a sponsor’s sponsorship, which is a reviewable decision.
The MRT decision could be subject to judicial review on questions
of law. Therefore, the information needs to be made available to
the MRT and the courts.

New Paragraph 3ED(3)(c) covers proceedings
under Subdivision BE of Division 3A, which includes the recovery of
civil penalties. This means that the information may be disclosed
or recorded etc for the purposes of civil remedy proceedings
brought under Subdivision BE for breach of a sponsorship
obligation.

New paragraph 3ED(3)(d) covers penalties which
are paid by a person (as an alternative to facing civil penalty
proceedings) in accordance with the regulations made under
paragraph 504(1)(jb) of the Migration Act. It is proposed that
regulations will be made under 504(1)(jb) to set up an infringement
notices regime. This paragraph operates so that information may be
disclosed, or recorded for the purposes of issuing an infringement
notice as an alternative to civil proceedings.

New paragraph 3ED(3)(e) covers any proceedings
arising from the proceedings mentioned in paragraph (c) or penalty
mentioned in paragraph (d). This is to cover any judicial review
that might be undertaken in relation to civil remedy proceedings or
the imposition of an infringement notice.

New subsection 3ED(4) provides that section
3ED applies in addition to, and not in derogation of, any other
provision of the TAA or of any other law relating to the
communication of information.

Subsection 3ED(5) defines "tax information"
for the purposes of new section 3ED by reference to the definition
in section 3EA. This subsection also defines taxation secrecy
provision for the purposes of new section 3ED by reference to its
meaning given by section 3E.

It is intended
that DIAC would be providing the ATO with very specific information
about a sponsor that indicates the sponsor may be in breach of an
obligation or not complying with tax laws of the Commonwealth,
State or Territory. This information could be obtained through
compliance and intelligence programs, or via a complaint from a
visa holder. DIAC may, for example give the Tax Office
documentation (such as business records obtained by inspectors)
which indicates a possible breach of an obligation, or breach of
tax laws, and this information could include the amount of income
the visa holder should have received, the amounts withheld by the
employer, details of the employer, including the Australian
Business Number (ABN).

If the Tax Office
has conducted compliance activity in relation to a taxpayer
identified by DIAC, then the Tax Office may provide DIAC with
information relating to non-compliance with taxation
laws.

In relation to retention of tax information
DIAC obtained from the Commissioner of Taxation, DIAC intends to
keep the information for the shortest amount of time necessary to
complete any of the purposes for which it was initially
disclosed.